*1 IN THE SUPREME COURT. u. Greensboro. for a A motion new trial and from defendants. by plaintiff the refusal the plaintiff appealed. Peebles,
Mr. II. B. for plaintiff (appellant). . Mr. B. for defendants. S. Gay, was error on Judge OuriaM: There part Per of reasonable question inquiry jury. leaving Railroad, C., As the case 109 N. back goes Emry v. if a new trial it is circumstances proper say testified to defendant and witness Futrell are authorities, true, then, under the defendant our would as is have made such reasonable contemplated by inquiry New the statute. Trial. THE CITY et al. MATTIE M. TATE v. OF GREENSBORO Right Cut Down Municipal Authority Streets— —Control A Shade Trees—Street Committee—Damnum bsqueInjuria. rights responsi- exactly in and is the same
1. A lias the same under only it controls dedication as in and for a street which bilities condemned; granted rights has and the for one which been abutting proprietor greater are no such street than if it had granted been condemned. corporations an municipal almost absolute discretion gives
2. The law streets, of their since wide discretion as to the maintenance responsibility performance should be conferred where manner heavily improper is so laid. performance general law the of Greensboro 3. The charter of municipal II) give to the ch. Vol. authorities Code, State {Tin1 improvement city wide the control and of that discretion streets, damage abutting if result to owner maliciously negligently neither nor reason of acts done of that discre wantonly, good faith the careful exercise but tion, injuria. it is damnum ahsque. TERM, G] Tate r. Greensboro. reposed with a discretion
4. The will not interfere the exercise of Courts *2 municipal city in authorities of a as to when and what improved, except in extent shall be cases of fraud and its streets oppression constituting of such discretion. manifest abuse power city given delegated 5. The to a over the streets can be to street Aldermen, composed committee of members of the Board of and committee, acting and the members of as such within the such answerable, power city, individually, of are not limits of the damage resulting- for from their acts. (Avery, J., arguendo, J., concurs). dissents which MacRae, Connor, J., This was a civil tried before and a actiox, Term, 1892, at Court of Guil- jury, August Superior ford County. facts consent of the the Court found the
By parties upon and the to the jury pleadings testimony, submitting if, It was issue upon regard damages. agreed found, the facts as the Court should be the opinion liable, of them were the defendants either judgment 'and should be rendered favor of the plaintiff against $300, with defendant or defendants for the sum of costs, and from interest the_day August, assessed said sum the amount damages being set otherwise the verdict should be aside judg- jury, costs. Pursuant ment be rendered plaintiff facts: said the Court found the following agreement 1891, and for 3d on the day August, plaintiff and had thereto, was been owner several years prior lot city and with her husband resided upon the lots of street, Greensboro situated on Ashboro adjoining as follows R. and others and bounded W. (as Murray described in the complaint). and had been for was on said
That Ashboro street day, thereto, a street highway several public years prior as such Greensboro, said held and maintained on foot said used the citizens of pass repass IN THE -SUPREME COURT. v. Gkeensboko. and in vehicles and worked force- the street upon by employment and under control and directions authorities of said That city. plaintiff’s pur- priol’ chase of the said lot the owner thereof had dedicated street, the said as and which the land city'', the trees hereinafter referred to were growing, standing with together for a side- of from five to six feet space walk; that the and at the after the plaintiff sug- purchase gestion some land owners set the fence back adjoining two and a feet, half thus feet sidewalk making eight wide; that sidewalk, on the and within outer edge the line of the said lot and front plaintiff's curbing *3 and thereon, situated there was on dwelling-house standing before the said and at the time of day, purchase plaintiff’s of said lot, size, which cast three oak trees of considerable shade lot, said upon contributing dwelling-house the comfort ; thereof as a that the leaves dwelling-place the said trees sun and so shaded obstructed the of the rays the street as time to cause the same portion be and near the front continue that there was gate damp; of lot, said trees were removed plaintiff’s before the forth, hereinafter set hole formed by depression soil, in which mud and at times created and water stood odor, offensive limbs which was increased by green leaves the street thrown said mud-hole directions of into 1891, force of said that on the said 3d day city; August, fence said and the between the trees space plaintiff’s fence, said was not uniform for the entire but length than seven feet, at no less about point averaged eight being usual feet, and afforded room for persons pass inconvenience; that sidewalk without maimer said upon of Greensboro section 60 of the charter of (see it is 1889, Acts, ch. Private 219) provided Laws macad- shall have grade, the Board of Aldermen power TERM, C.] v. Geeensbobo. sidewalks, out, amize and and to the streets pave lay new streets or those change widen open already open and make such thereon as the con- improvements 1, venience ch. ordi- section may require; nances of the “There shall Greensboro provides: at the first after appointed by Mayor regular meeting committees of four organization May eight standing * * * each, members as follows, to-wit: street com- “ mittee.” Section 13 of the said ordinances provides: street committee shall control and of all have supervision streets, matters to the sidewalks and relating pumps shall city,-and determine the amount of labor and material * * * to be used and shall board from report time, time to all other duties perform imposed them the Board of Aldermen.”
That of the ordinances above pursuant provisions Scott, set forth the defendants J. L. and Ii. L. King together with J. D. Mendenhall, Glenn and R. J. were duly appointed a street committee for the year complaint having- been made to the said street committee some of the citi- zens of said street, the condition of said city respecting the defendants and Scott conferred with King severally J. R. Mendenhall, and concurred the conclusion that the said trees should he removed. No formal meeting *4 of the said committee in to said was called or held regard matter.
That L. to said conclusion the defendants John pursuant and L. Scott directed the said street force of King Hugh said trees, to remove 3d the said and on the said city day the said force the removal of August, street began said trees them the roots and concluded by digging up by the work two or cut into three The trees were days. husband'of the The logs placed plaintiff’s yard. the was to the removal plaintiff present objected ' IN THE COURT. SUPREME (trisexsboeo.
said and notified defendants that would trees, the That no action taken or held therefor. was responsible the Board Aldermen in the order made respect said trees, nor made the removal of said was any report action to the said Board to their street committee regard the in the that the removal of the trees after premises; rock was filled the authorities with mud-hole the it is now in condition. street so that improved good The have been filled without hole could removing trees. facts, Court, opinion foregoing being
that and maintain not entitled have plaintiff action, rendered her verdict the jury, directed- to a submitted nonsuit plaintiff ap- whereupon pealed. M. L. M. and J. Barringer,
Messrs.R. Scott A. Douglas, plaintiff. E. defendant.
Jfessrs. Dillard & James King Boyd, first, that BukwKul, It is J.: contended bj' plaintiff, she act of which even admitting complains —the shade trees on the outer destruction of standing edge of Greens sidewalk in front of her residence authorized boro—was done by duly agents is still for the she entitled to recover municipal corporation, these done to her down of damage property by cutting trees, did not his Honor has found that because the3r sidewalk; that the on the obstruct the persons passage destruction, and did their convenience not require street, “mud-hole” for the removing done, have been Avhichthis act seems have been could without them down. remedied cutting this This the ease for our consideration presents phase *5 TERM, C.] r. Gbeexsboeo. Can the Courts review the exercise question: by Greensboro of its its power repair streets improve and remove what it considers obstructions therein, and find declare certain trees the streets of that city, which the authorities municipal honestly believed were and obstructive to the injurious so, were in fact public, there no upon findings, being allegation neg- or of -want of faith on ligence good of the part city, award damages abutting proprietor, comfort of whose home has been lessened the removal of the by trees?
The street in which these trees stood was dedicated to use as a street those under by whom the plaintiff claims title. control of this street reason Holding of its dedication nevertheless, has only, citjr, the same exactly therein if therefor as rights responsibilities it had been deed the owner to the conveyed' corporation use for street or had been condemned and purposes, taken for those purposes according provisions charter. And the therein no rights are than' plaintiff greater if it had been so or so .condemned and conveyed taken. Now the that counties and responsibilities assume, townships or are law, under put relation to their highways different from those of cities and towns in very relation to their streets. It is that roads shall required kept individuals, certain repair, whom is cast in one or another the burden of that these way seeing repairs made, can be indicted for this but failing perform duty, is not held liable for municipality (county township) result from the roads out of order damages may being towns, however, 'obstructed. Cities and are held to strict for the pecuniary condition of their streets. accountability are not State, divisions of the made it for They political whole, convenience but are government corpo rations chartered at the of the inhab presumably request THE IN SUPREME COURT. *6 (tkeensboro.
Tate v. and and itants, with corre granted privileges charged of the Among very sponding responsibilities. gravest that the law on cities and pecuniary responsibilities imposes is for and towns liability damages persons property a defective or obstructed street. caused by improperly Commissioners, N. Edenton, C., 431; 90 v. White Bunch it is that the law all Ibid, 437. lienee such gives corpo discretion in an almost absolute rations maintenance streets, seems, it most reasonable, as is considering, their as to manner discretion should that wide performance for where responsibility performance be conferred improper laid. Illustrative this is the heavily provision so §3803, that Code, the commissioners towns “shall The the streets and keeping proper repair bridges provide in the manner town the extent deem they may think that its under charter under the best.” Wo gen Code, 62, ch. law of the State Yol. the city eral (The II) was clothed with such discretion control Greensboro streets, and if conies to damage and improvement of acts done neither it, reason negligently plaintiff but in faith in the wantonly, maliciously good nor of'that, discretion, is damnum exercise absque careful How., 20 135 ; Smith v. Brush v. Washington, City injuria. Ill., Carter, Mich., 78 32 Carbondale, Pontiac has denied that abutting inoprietor It is in the street in his front as contra- as an individual rights his therein as a from member rights distinguished trees one public. standing corporation are his the sidewalk a restricted sense street along cut or an individual who If injured they trees. to cut he from the or remove them authority no has His of such individual. recover damages may will it from act of law protect is such them Ball, Mass., 99 Bliss v. trepasser. wrong-doer TERM, N. C.] ik Greensboro. Shattuck, H., Am. Graves (69 Dec.),
are illustrations of this In the former principle. case the Court, done injury defendant speaking to the “ trees in street front of lot, plaintiff’s said: If the nuisance, defendant were a they thought he have might selectmen, and it them to complained decide * * * whether should be they removed. question had The defendant no to remove authority them, nor were authorized to decide the jury whether question *7 remain”; and thus that ought seems abun authority to sustain the is not position it for a dantly Court and to review the conduct of the jury proper municipal authori in ties such matter as that now under consideration. In Columbia, S., Barnes v. District 91 540, U. it is said: “The of state, and our authorities own effect, to the knowledge and streets, the care superintendence and alleys and the highways, regulation grades of new opening and the old streets are closing peculiarly municipal duties. No other can so and power wisely con judiciously this as the subject trol authority immediate locality is to where work be done.”
The wisdom of this rule is well illustrated this action. made, seems, were citizens that Complaints these trees and, were to the in injurious their public way effects, per- to the health. The public haps, authorities of the proper clothed with the city, power repair streets and pro- health, tect the listened to these and in complaints, of their best exercise so far as judgment, appears, decided that the interest of the their community required removal. is that a proposition plaintiff jury shall of the correctness of this conclusion, and if judge find that the officials committed what they think they was error, and the an shall be they mulct damages. maintenance “The of such action would transfer to THE IN SUPREME COURT. Gkeenkboko. v. which the law vests the discretion
Court jury but transfer them not be exercised directly municipality, but the retroactive indirectly partially by and finally, verdicts upon special complaints.” Cooley effect punitive Lim., 255 Const. (6th Ed.). Cox, 21 Ohio which counsel St., v. plaintiff’s Phifer road, brief, related alleged to county
cited their done by private plaintiff’s hedge wrongful cutting think, case, no we this it has citizen. So application, to the same class decisions Graves Shattuck belongs Ball, and Bliss supra. Iowa, 583, cited, also relates
Bills v. Belknap, coun- of trees standing highway down cutting to restrain the action was the supervisor try, Iowa, 66, also road. In Everett Council City Bluff, which was a suit to defend- enjoin relied by plaintiff, down certain shade trees front of plain- ant from cutting lot, the trees were tiff’s alleged “perfectly petition no to the free use' sound and afforded obstruction safe and sidewalk,” and stated reasons the street and why answer, The defendant made no not be removed. should *8 taken of the were and astlioCoui-tsaidthe petition allegations admission the defend- true, and so it the as appeared do, orders, its were about to under ant that its officers which, because it that the conceded plaintiff, wrong done, it to be interest did not any way require public and think that case is We would bo wanton unnecessary. from the one now under considera- clearly distinguishable tion. in this matter are well govern which stated
The principles Wis., Northwestern City, (51 Rep., Chase v. 560), trees, down shade for for very an action damages cutting we are from we make to the one considering, similar which the use “The the public the following quotation: TERM, C.] Tate t. Giieexrbotio.
of the street the travel extends to the por- purposes tion and sidewalks, set used for well as to as apart way and, short, etc., to the entire width carriages, wagons, which street the land of the lot owner abuts. upon As the lot owner the as trustee of the against city, public, use, has an undoubted see whenever authorities right, fit, to fit and and for use travel street over which open width, easement extends the entire and whether public it, it will so or bo whether it should open improve is a matter of discretion to be deter- opened improved, mined authorities to whom the public charge control of the interests over easements public are committed. With this discretion of the authorities Courts cannot interfere 'ordinarily upon complaint the lot owner so as the easement continues to exist. long * * * interest, use is the public dominant authorities are the exclusive and to when judges what extent streets shall be Courts inter- can improved. fere cases fraud and mani- only oppression, constituting fest abuse of discretion. It follows that for the necessarily of this officers performance discretionary duty by city reasonable can main- manner'no action prudent tained against city.” think, shown, as we cannot
Having plaintiff recover we come to consider her second city, proposi- tion —that can she recover of “the other defend- damages ants, kScott, & not as servants King agents but it is feasors,” tort as stated in the city, independent brief of In other it is words, her counsel. proposed abandoned, the cause of action as shall be against and the cause the other defendants proceed had no from the to do theory authority *9 the act of. complained
We think the to the over the streets power city given
2(5 IN THE SUPREME COURT. r. Greensboro. of mem- to a street committee composed
could delegated Aldermen, was; as that this this one of the Board bers committee, and therefore of the action of that action was would have been and that as these individals just city, if had been the act answerable damages plaintiffs, are not lia- so of the municipality, power beyond All show those -went to if the act was within powers. ble defendants were that the individual acting agents insists, assert. The so so city. officers They Therefore, as the has. ratifies their act. and distinctly baye neither no they. done legal wrong,
Affirmed. to funda- It is safe to recur Avery, J., dissenting: always is to. refrain from It going mental perilous principles. arises out of where the the fountain-head controversy or without com- to use destroy agency attempt public claimed to be what is private property. pensation is, at the case bar What involved very question owners— and dominant of the servient rights respectively in a street —what and the the town abutting proprietor and what the easement residuary to the with public passed in the owner after the interest remained appropriation The taking purposes? the municipality corporate exer- like other for a public highway, private property domain, can he justified only of eminent cise of essential, it is public necessity ground —that to subserve the convenience promote prosperity order under the gen- body comprehended of the great people use of it for them the of the public, give eral designation Lim., 643. Where Con. Cooley certain specified purposes. dedication whether an easement acquired, by grant, than condemnation, more passes nothing the objects land furtherance of use the strictly power *10 TERM, 1894.' C.] Tate v. Greensboro.
for which the authorized its Legislature appropriation. in so far as his Except is restricted right enjoyment the inhibition his for the interference with use particular all public purposes, rights ownership are still retained the holder servient tenement. The other estate dominates and overshadows his only so far as is which its the ends for necessary subserve lias been privilege granted. in a. owner street residuary rights abutting
are somewhat more restricted than those of an- adjacent road, because, in a in proprietor jmblio contemplation law, the for the are measured the extent damages taking use limitation of public private consequent enjoyment the servient owner.
I
down as a
may safely lay
general proposition
when the
to be taken
Legislature permits
property
private
or
by public
the State intends
quasi-public corporation
that it shall
be appropriated only
corporate purposes—
such uses as
to enable the
«order
may
public
necessary
its duties
the State and
agency
enjoy
perform
it.
rights
Whatever
compensatory privileges granted
do
from the
nature of
streets
property
very
pass,
of its public
municipality,
necessary
discharge
functions or as
to the franchise
incidents
inseparable
granted,
remain in
reserved
the abutting
by implication
proprietor,
benefit,
has
of law for his
whether the
town
accpiired
or con-
the fee or an
either
dedication
easement
by grant,
demnation,
of such
owner
and whether the line
abutting
the street. The abut-
extends to the
middle of
margin
which
have a
a street
qualified
ting proprietors
use
soil of
entitles
to make
them
beneficial
“any
with the
which
consistent
para-
prior
highway
for street
mount
therein
purposes
rights
“If
foe to
Dillon, sec. 6565.
own the
they
proper.”
IN THE
COURT.'
SUPREME
r. Gkkkxsbouo.
“their
line of the
Judge
the renter
streets” (says
DilloN)
If
in their nature.
own
therein are
rights
legal
in the
their
street
-line of the streets
rights
fee
fee,
but
extent
easements
nature
equitable
fee is
them sub
as when the
arc
same
substantially
*11
663, 664, 661;
Ball,
Ibid.,
Bliss v.
use.”
secs.
public
ject
“
land is bounded on a
Guided this Court held that principles loss caused excavation on embankments made chang of a street the owner could ing grade abutting recover unless the due to want of skill injury directly in the excavation of the work. Meares negligence Wil *12 Ired., 73; 9 C., 92 N. mington, Wright 156. Wilmington, In such it cases was considered that the alteration the a was not new but a use of that was in highway taking, at the time when the- easement to contemplation the passed 2 Lim., 671; Dillon, 992,'and Con. sec. public. Cooley p. rule, however, note. Even this has so proven oppressive as to lead in of the some States to the practice enact and ment of statutes the amendment of so as constitutions to create a as for an when liability there is original taking, a of such that ensues to an grade change damage adjacent Domain, 8, Lewis on Em. ch. 221. sec. proprietor. especially Lewis, Mr. “The no in the says use public,” “acquire right of and cannot divest them for the springs highway ' a The owner of purpose making public watering-place. the land cannot the location of the road when it change crosses his land. He materials on the surface may deposit therein, of the shade trees or ornamental trees vray, plant * * * set etc: The cannot hitching posts, public place COURT. IN THE SUPREME (Jkeen’Shoro. with its use soil no connection structures on the which have Domain, a on Em. Deaton as Lewis highway.” p. Polk, The 9 Iowa. para “Subject County of the the the owner of the mount rights public right same the casement did not though fee remain the public * * * make exist. As the he may public land does not interfere with the use use which Ibid, as a sec. of the same enjoyment highway.” fee learned author claims for owner to trees both for shade right plant highway ornament, and it cannot be denied ho acquires quali so fied in the fruit of his labors when they grow property It his is conceded to be the law as to subserve purpose. can cut down North Carolina that such shade trees be when the is because changed, planted grade principle power grade contemplation one, that “of the is necessity continuing expedi its exercise ency governing body corporation, Courts, Dillon, and not is the sec. judge.” note.
But a tree planted subject right though it in this the exercise of destroy continuing power it is streets, nevertheless the improve fee, owner of the and when no ordered change grade of the town authorities have governing it obstructs the remove it on the only ground highway nuisance, and is after condemnation therefore ascertained a mode compensation payment *13 law. out by pointed Nuisances,
Mr. in section not Wood, his work with such other able and text- only agrees discriminating in the Judge declaring adjacent writers DilloN front, in in has a trees in his but owner property planted if authorities are the municipal responsible maintaining TERM, G] (íiíeexsboro. Tati-: r. nuisances, with deal them as when fact not
they in do they interfere with the the use of streets and sidewalks. ordinary He “Shade set.in a street or trees without says: highway any law, a travel, which measure obstruct authority * * * nuisance. But can be removed they only by authorities, owner or the and if they (the public remove when them do not obstruct travel authorities) they are liable to the owner therefor.” See damages also, v. Doseo, Mich., If Clark can be recov- damage ered it must ex be necessitate assessed a since it will by jury, it not be contended that is a taking exercise of of eminent domain for which the law provides any other mode of fixing compensation. find
Thus we that all text-writers concur leading which I view, decisions cite to sustain construing my to have in this settled principles country generahy is shade tree which owner cannot abutting be as a nuisance unless it hinders free use destroyed it is where not an obstruction the highway public, owner recover of the authorities of a may damages city its removal. In treating wrongful power prevent and abate nuisances DilloN says: “This Judge authority and its exercise conferred summary may constitutionally on the and it authorizes its counsel to act incorporated place, nuisance, that which within comes notion of a legal but such conferred terms general cannot be taken power authorize extra condemnation and destruc- judicial nature, tion of that as a nuisance which situation or * * * such. use is not It is doctrine to be toler- ated this that a countiy municipal without corporation laws of the or of the State within which any general nuisance, can be to be can, structure shown given one, it mere declaration that removal subject to be or even supposed person aggrieved *14 IN THE COURT. 408 SUPREME Gkuexshoro. v. Dil Iowa, 66; 46 1 Council Everett v. City Bluffs, itself.” v. Milwaukee, Wallace, 498; State lon, 374; 10 sec. Yates Law, Lim., 242, 741, 170; 29 N. Const. J. Cooley Jersey City, note; Rock, Little 41 Mott, Md., 61 Ward v. State v. Park, Ill., 634; How Ark., 526; Fertilizer Co. v. Hyde Mun. sec. 252. & B. Corp., of is to be
If of the tree the destruction complained it not contended that there to the defendant imputed act than the authority other law general authorizing in such a nuisances. acts case Whether prevent or under as this under the to abate nuisances general power obstructions, is the to remove the rule authority special to a the use of streets same. “Power regulate from them and to remove obstructions alleys prevent nui- of actual ways contemplates preservation which, use, and with their accustomed until they sances interfere thereon, under a have become obstructions actually open can- claim title the face of the prosecution, apparent tri- not be dealt with under ordinance the municipal bunal, but the must be determinedin the rights parties note; 2 Dillon, 809, courts." sec. Jackson Mich., Ohio, Ill; Cox,21 People, Phifer to raise the exercise of the
While continuing authority or lower the of streets the law grade requires 'city faith, skill, destruction of care only good arbitrary what is cannot be confiscation property equivalent on the that the act was done under the honest justified ground because belief that was lawful abatement of a nuisance it obstructed the If the tree was highway.
was not authority planted contemplation legal will, to cut it at but down implied, only city, express nuisance, of its destruction as a then view of possibility have would have the unquestionably plaintiff facts, MTas such as the where the tree any disputed question TERM, O.] Tate v. Greensboro. tried with instruction from the Court
standing, jury, *15 as to what constituted nuisance such as the city might abate. Good faith 'will not officer summarily protect who commits a without the color of authority trespass leave remediless one whose thereby property destroyed Streets, without reason or Elliott on Roads and necessity. 521. An which, obstruction is defined as without “anything reasonable the use of the law streets for necessity, impedes ful Ord., Horr & Bemis Mun. Pol. sec. 230. purposes.” “’When owners retain the fee in the streets the adjacent trees, has no unless corporation destroy they grow Bemis, within the street or so to obstruct traffic.” Horr & 229; Ball, Mass., 597; sec. v. 99 97 Bliss White v. Godfrey, ; Mass., 472; Morristown, Tortor v. 19 N. J. 46 v. Cross Eq., 583; Morristown, Iowa, 18 N. 36 J. Bills v. Eq., Belkry, Everett v. Council Bluffs, supra. in
Whether trees are nuisance public highway a-publie “is a fact in all for the cases. question jury” Phifer Cox, Ohio, 21 If an overseer cuts down a tree which does not obstruct or with the use of the interfere' road he is a and if he so is lia does maliciously trespasser, Peterson, ble to Zabriskie Winter damages. exemplary (N. J.), Cases,
The case of Am. R. and Chase City, Corp. first in with the view of to be conflict may appear upon current the cases we have with authority general cited, it; some of which are collated a note appended hut that the closer examination it will opin upon appear ion rests that the common council upon ground the streets of the charter special provisions “protect from encroachment or “to pro injury,” prevent, hibit and all cause removal of obstructions all streets in said city.” IN THE SUPREME COURT.
Tate r. Greensboro. The charter of the of Greensboro con- provides demnation of for the or wid- purpose changing streets existence and out new ening already laying ones, but find we no warrant special assuming function of judicial obstruction declaring any whole street a If nuisance. had consti- Legislature tuted the and commissioners, or the commit- Mayor street tee them, selected and had court special empow- ered them which, remove obstructions their judg- ment, nuisances, were we would still have been compelled to meet whether the could question Legislature indirect clothe the officers of a way municipality with the destroy authority private property *16 the deprive sufferer to “the ancient mode right trial to him “in all controversies jury” guaranteed ” I, the Constitution sec. respecting (Art. property 1), unless the trees had in an been planted contemplation conferred the town council to clear all express power upon of the streets of trees. This does not parts grave question arise this case and of it the discussion is therefore unnec- When the shall be it will essary. point properly presented be to determine whether the can dis- necessary Legislature with the of trial pense case right by juiy any involving the title to when the could have claimed property litigant it under the ancient common law.
It seems that in the recent case of O’Connorv. Telephone Co., Times, XIII, Vol. No. 336 of Canadian Law the p. Court Nova Scotia has held that appellate rights owners of the fee on a street extended to the- abutting front, middle of the his and that he had a highway prop ornamental shade trees the street his front erty could maintain an action for telephone company assessed, course, for damages (to mutilating jury) such trees. TERM, 189.4. G] r. Greensboro. Ill, Rem., Lawson
Says Rights “Adja- 1758): (Yol. cent land owners use between the may space lawfully and sidewalks of trees for path carriage growing ornament or use. Trees thus situated in no sense nuisances, but But the private property.” right stands substantial of inexorable more upon ground reason since the does not between appropriate space and the the sidewalk the street for corporate purposes, him to of the fee residuary right empowers owner it. use is in to extend
Even where the the dominant owner if its actual it becoine no such sum dominion necessary destruction without reason is Where mary permitted. hun for a for a distance of one
fee is condemned railway track, feet on either side of the while the dred corporation if the transac build an additional track may requisite its at time tion of business the period during existence, or structures for erect may corporate corporate if the the land adjacent appropriated, yet purposes upon limit one hundred and raise corn within the owner plant feet, but not of the way actually occupied portion nor con law neither imposes duty company, corn as a latter to cut down such fers the on the power obstruct the view of engineer nuisance because may line him cattle from seeing approaching *17 prevent 358; v. Railroad, C., 109 N. Ward Ward railway. hand, the Railroad, C.,N. 566. On the other corpora author ti’ees,because that is in that case remove tion mat- a nuisance statute, upon lest become by falling ized they by the and in our But the facts are found opinion the track. sum nuisance to subject tree was not shown to the the the but was removal by city, mary for which an action destruction of for the willful plaintiff, under whose those trespassers against lies damage JN THE SUPREME COURT. Gkeenkboko. r. acted. There was no have pretense authority they may to for a or of authority condemnation public purpose take, mode if it other than was private property, charter, a valuation out in section 60 of the pointed was evidence that the tree three freeholders. There no was of travelers on unsound so as to the safety endanger law in or out of was there highway, provision down of trees located charter authorizing cutting qr on the at on the of the sidewalks any point margin streets to avert danger authority public. widen charter, make in a like that to improvements given that commis- streets, with the condition coupled sioners assess should be any damage appointed made. be caused might changes In a fact at bar the Court found as case sidewalk, trees did not effect they obstruct the author- nuisances, were not that there was no and therefore ity them. destroying
When such shade treees neither passage impede the sidewalks vehicles nor obstruct unreasonably ordinances pro authorities enact municipal may general tect them even wanton destruction injury owner, orders or by-laws but are not empowered nuisances, in law when cause them be removed Bemiss, sec. & fact nuisances. Horr are not they Nui 229; Mass., 197; Wood Boston, McCarthy owner, sances, notwithstanding sec. An adjacent it, authorizing order or authorities ordinance of municipal his indi invasion entitled to recover damages in his trees of shade vidual as the destruction rights, use of front, high with the when do not interfere Bomis, sec. &Horr whatever. for any way public purpose Elliott on 294; Wood, sec. Ball, supra, Bliss supra; orna- of shade 536. And the destruction S., R. and *18 TERM, 418 G] Tate v. Greensboro. trees, in
mental located in front of tho public highway owner, of the has been held premises to be an abutting him, to that reason has irreparable been injury where their removal enjoined necessary easement enjoyment Tainter v. public. Mor ristown, 46; 19 N. J. Morristown, Grossv. 18 N. J. Eq., Eq., 305; Iowa, Bills v. 583. “As Belknap, owner of the Elliott, fee” (says supra, “subject only 536), easement, the abutter owns the has all the (who ordi fee) remedies of the owner aof freehold. He nary main may tain one who cuts and trespass against carries unlawfully trees or and even away grass, herbage, one who stands the sidewalk front of his premises uses him, abusive towards language refusing depart.”' State Davis, C., 80 N. If the shade trees of the house plaintiff’s were .front at law, not nuisance common nor so declared statute, no ordinance or proceeding municipal authorities or their could their justify destruction in agents the face husband. objection Miller plaintiff’s v. Birch, 242; 5 Am. Yates Milwaukee, Rep., 1 Dillon, supra; secs. 374 to Everitt v. Council City Iowa, 66 Bluffs, ; Park, and Fertilizer Co. Cooley Hyde supra. The three force, oak trees cut down the street obedience to the command of the defendant’s committee,. street King Scott, after of Mendenhall securing approval committee, at same stood the outer aof sidewalk edge eight wide, feet and within the line of the and, curbing, being front directly plaintiff’s dwelling-house, contrib uted to the comfort of its inmates. The between space line trees and the inner of the sidewalk was not uniform in width. It but was at no averaged eight, point less width, than seven feet was found the Court to afford “room wide sufficiently persons pass usual manner without inconvenience.” IN THE SUPREME COURT.
Tate r. Greexsboro. The found that below also “the leaves said Judge trees the of the sun obstructed and so shaded rays the street as be and to cause continue for a damp portion excludes the time.” idea that the trees finding the sidewalk, were nuisance and the mere obstructing fact that so shade was dense as to occasional cause damp- ness it is not that so under evidence satisfactory they inter- as to ferred with the use the street constitute them a Ball, nuisance. It is a Bliss v. matter of common supra. that all observation trees which subserve the purpose earth, within the line of shading ground prevent shadows, their from so soon as the surround- dry becoming the commissioners authorized, And were not ing space. had created a stench a hole because near filling limbs, to declare a nuisance the trees with them as green odor, since the finds the cause of the offensive Court that, them, authorities, after the-municipal removing filling stone, condition, street the hole with put good this could been used without have remedy effectually at all. far from the trees So molesting showing the benefit was demanded for or convenience of removal conclusion of fact submitted the Court public, within the contention plaintiff sustains being seven feet or more from the curbing (but fence) nor the neither obstructed the sidewalk twenty-three trees that the hole could and would have way; feet carriage earth, and that if filled stone with dampness been trees made them nuisance under the dense foliage it, tree that subserves the purpose shade planting every liable would be casts a shadow' upon higli-way, if it town at the arbitrary bidding any agent destruction ho entrusted with duty repairing might who Rem., R. and sec. 17-58. The Lawson streets. trees, are in statutes, in some which States protect TERM, C.] r. ü-reexsboro. affirmance of the that the owner surrenders to the principle such dominion over the land could he only exercise without with easement of the interfering pub- lic as a for use The admitted of the abut- highway. under the law owner common and to ting herbage, sue or sometimes cause to be indicted and crimi- punished a forcible committed on'the in his nally trespass highway front, is an illustration of this well-established principle. however,
It is on behalf of the urged, Greens- *20 it boro that cannot be held for answerable the trespass committed under the direction of the defendants and King Scott, it “no because action was or taken order appears made the Board of Aldermen to the removal by respect trees, nor was by made the any street com- report mittee to the said Board with to their regard action the premises.” 12,
It ch. section 1 of provided the ordi- a committees, nances that number of of four composed each, aldermen should be from the appointed members of the Board to certain take charge departments the and them was that municipal government, among composed of defendants and and Scott Aldermen Glenn and King Mendenhall, who the next terms the section were entrusted with the “control and o.f all supervision matters streets, and sidewalks relating pumps city,” without etc. This further appointment, any recognition acts, their and constituted Scott the King the agents the streets and all for the that could supervision 2 done for the and of them. Dil- improvement reparation lon, “Towns, counties, 979 and cities villages must (777). for such officers, torts their respond agents servants as have been suffered or committed by corporate authority.” Torts, on 122. As Cooley relation of agents p.
members of the committee to the town was legally IN THE
410 SUPREME COURT.
Tate v. Gkeekshoro. master, his as that of servant to same respon- is likewise municipality superior sibility governed rules to such relation. applicable is committed the course Where trespass employ and is or servant intended believed ment of agent benefit of his operate trespasser superior, be willful such is none the less may superior though 1 Shearman & Redfield answerable on damages. Nog., 151; Torts, 536; Enc., Am. & Cooley sec. Eng. pp. 253, 425; Johnston v. 5 Gilman Barber, note (Ill.), 5Co., H. & C. 526. “If in v. Omnibus Rep. Limpas (Exc.), its or streets make or to improve exercising power open or sewers or officers of a cor drains agents municipal direction, under its or commit a tres authority poration, take without pass possession private property comply statute, charter is liable with corporation ing In therefor. such cases also an action lie will damages of land owner city corporation by through sewer, trees which have made or for unlawfully agents Dillon, done them.” injuries destroyed sec. is treated “Where of streets repair working (772). *21 as in North the officer (as Carolina) municipal duty, as an distinction from charge corporate independ officer, was ent or where injury negligently caused such officer process upon executing or an authorized work for streets corporate improvement them, the doctrine of would respondeat superior apply.” 2 Dillon, If, 979 and 983 secs. 980 (777), (778) Ed.). (4th then, the was the members of the com- city acting through as its its mittee was exercise of ministerial agents, or as from its distinguished judicial, legislative corporate duties, as therefore answerable discretionary for sucli acts done the course their employment superior as intended to enure to the benefit of the wore manifestly N. TERM, 1894. 417 C.] r. Greexsboiio. N. corporation. Asheville, C., 237; v. 103 on Cooley Moffitt Torts, Ibid., 63 9; 122. The from the p. implication finding that was is that the committee (if necessary) Conirt “ the conclusion that the trees should be concurred'ka ” in street, removed order and that improve King Scott, aldermen, intended benefit the corporation when directed the street to do force the work. They then the same relation to the sustained municipality, a conductor or other bears to agent quasi-public corpora tion, such as a railroad or street-car and it is company, that, well settled numberless cases though agent servant of such a tres corporations commit may willfully of his the course if is pass the act done yet employment, with the belief that it will benefit the or master principal interest, the intention advance its principle Railroad, Moore v. respondeat superior applies. Gray 180’; v. 465; Co., Y., Shea Sixth Avenue (Mass.), Sey Greenwood, 359; mour v. 6 H. Red., & N. 1 Shear & (Ex.), 150; Torts, sec. 533 to Om Cooley pp. Simpson Co., Torts, nibus Pollok on supra;
But is for acts done only corpoi-ation responsible its in the execution the duties By agents assigned them, will but a action for the tort lie joint Allen, 420; and the servant. Hewett Swift, company Wendell, Barber, Wilcox,19 Johnston v. Wright supra; natural The lawis founded upon conceptionsof highest It for a and Board of Com- Mayor justice. impracticable in a missioners street of along every to move body a tree. and sit in removal of proposed judgment A must work constituted by through agents govern- is entrusted to a street authorities, and when ing agency law, is no reason or committee there principle justice *22 torts that will relieve the for their liability municipality it, when in the business entrusted to because the engaged IN THE COURT. SUPREME r. Greensboro. to did not desist on an the removal committee objection tree, and call a the street force from work meeting stop act. The when council authorize or town to engaged ratify or in the of its streets performance improvement for the act intended benefit liable municipality for and willful torts of its just both agents, negligence or as when an officer servant of quasi-public corporation omits to commits little overt acts discharge or negligently that he his he to subjects represents duty company Asheville, for supra; liability consequent injury. Moffitt Torts, 619'. Tf of a railroad com a director Cooley to were act conductor company pany appointed could not on the escape liability removing passenger he had conduct been guilty ground disorderly when, fact, did not the conduc nuisance his acts justify him. tor The committee were not the less ejecting of the town council because wore selected from agents itself. It is well-known fact that the body governing pur towns if not authorities entrust usually, universally, the con improvements, involving management demnation of selected from committees private property, their own towns bodies. To absolve the from liability agents committed such under -their direc trespass tion for the benefit of the when cases many corporation, committeemen would be irresponsible primarily, to countenance instances some what oppression would be confiscation. equivalent An ordinance that the street committee “shall provided all have control matters supervision relating streets, sidewalks and shall determine the pumps, * * * amount be used of labor material to the board from time to time and shall report perform the duties them the Board of Aldermen.” imposed upon Would the conductors should ordinary regulation the company report president superintendent *23 TERM, 1894. G.] (tbeeíísboRO. Tate
the fact that he had a ejected excuse "com passenger from for caused pany responsibility injury by wrongful When it'sown benefit a expulsion? acting municipality stands the samé as to for the precisely footing liability . of its acts does a as agents See quasi-public corporation Asheville, and authorities supra, cited. Suppose Moffit such should means of a corporation declare by-law conductor, and engineer, baggage-master flagman committee to have control of the question ejecting or drunken or such as failed disorderly passengers fare, tickets secure or would the be allowed pay corporation to evade for the willful and violent liability wrongful, of a the conductor and expulsion passenger by baggage- after man because did consulting flagman, engineer till it not the act approve communicated? on Cooley Torts, 539. To the same p. apply such principle agen cies of the directors of govern questions right to bind their bo corporations would private companies of all destruction entering wedge corporate liability the torts servants. Means be found would agents leave at the by ingenious regulations mercy and reckless and servants caprice irresponsible agents were the behind possibility corporation putting bulwarks once The to trial is suggested. right jury none less constitutional because are some juries evil, times misled The corrective for such by prejudice. exists, if it is the enactment of statutes greater requiring selection, in their care not judicial legislation restricting law. operation original Says Judge Cooley, “Towns, Torts, counties, his work 122: p. villages officers, must for such torts of their agents cities respond servants as have been committed or suffered cor “ authorities.” It is not for the act merely wrongful porate do, is directed to but the that servant agent wrong do, ful act he is suffered city responsible.” IN THE SUPREME COURT. Gkeb.n'Sbojro. r. to see It was the Ibid., duty conducted its so were attentive prudent, agents others. Commissioners business as needlessly injure Met., tjie Nicholas, law presumes *24 that it was force, its street fact engaged looks after after the order was Scott or three given two days is the Mayor the trees evidence King removing removal to suffered the be and commissioners knowingly to have known what these knew' They made. ought laborers were paid doing. think, therefore, that w'as error ruling
I there the action could not be maintained the Court below- two aldermen their indi- or the either against a will- The aldermen were vidual two guilty capacity. liable, because for which the became ful trespass, corporation their duty was committed attempt discharge ordinance and as named with agents corporation willful, its streets. The act the intent being improve were not relieved of because prin- responsibility agents w'ere made The committee wore not a answerable. cipals of the town, but were the authorized agents corporation, should meet like and it was not essential that stock- they at an time or not holders appointed place. question n whether contract, a bind a but could they municipality by whether, within line of servants duty pre- acting them, make the tort scribed for could feasor they city joint sufficient, think, It I with them. was majority agreed conduct course of and their certain purpose at the out the laborers two carried bidding number, strict were acting conformity (as charter, the terms of'a but were agents stockholders) to cause a out common carrying purpose trespass committed. I concur the above
MacRais, J.: dissenting opinion.